FCC: Yup, we’re going to stop “paid prioritization” on the ‘Net

The FCC's net neutrality Order makes a point of warning that priority access …

The Federal Communications Commission is releasing the details of its new net neutrality Order in stages. Although the FCC's new ban on "unreasonable discrimination" for wired ISPs allows certain kinds of traffic discrimination (not all bits need be equal), the agency made clear after today's meeting that "paid prioritization" deals with Internet companies are unlikely to be allowed. Critics had worried that the new Order would only affect outright website blocking, leaving paid prioritization untouched (or even implicitly sanctioned).

"Pay for Priority Unlikely to Satisfy 'No Unreasonable Discrimination' Rule," advises one subheading of the new net neutrality rules. Ed Whitacre's dream of directly charging Google and Yahoo to "use his pipes"—a key event in starting the entire net neutrality debate—appears to be dashed.

"A commercial arrangement between a broadband provider and a third party to directly or indirectly favor some traffic over other traffic in the connection to a subscriber of the broadband provider (i.e., 'pay for priority') would raise significant cause for concern," the Commission then elaborates. This is because "pay for priority would represent a significant departure from historical and current practice."

Insofar as engaged

As we've reported, the FCC's new rules forbid Internet providers from blocking lawful content and they require transparency from ISPs. They also require that network management and packet discrimination to be "reasonable," but that only applies to wireline broadband. Wireless operators gets a free pass on rationality; they're limited only to the transparency and blocking provisions.

Here's the text of the Commission's "no unreasonable discrimination" rule:

A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer's broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.

What are "reasonable network management" practices? Here you go:

A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service. Legitimate network management purposes include: ensuring network security and integrity, including by addressing traffic that is harmful to the network; addressing traffic that is unwanted by users (including by premise operators), such as by providing services or capabilities consistent with a user's choices regarding parental controls or security capabilities; and by reducing or mitigating the effects of congestion on the network.

"Specialized services" like IPTV (think AT&T''s U-Verse) will also be allowed over the last-mile broadband connection, although the FCC insists it will watch their deployment for anti-competitive behavior. But the Order rather strongly suggests that priority deals are "unlikely" to fit into this "reasonable" framework.

Why not? First, "since the beginning of the Internet," the agency explains, "Internet access providers have typically not charged particular content or application providers fees to reach the providers' consumer retail service subscribers or struck pay-for-priority deals, and the record does not contain evidence that US broadband providers currently engage in such arrangements."

Second, priority deals would represent a "departure from longstanding norms" and "could cause great harm to innovation and investment in and on the Internet." They would raise barriers on entry for edge providers and could also boost "transaction costs arising from the need to reach agreements with one or more broadband providers to access a critical mass of potential users."

Third, pay for priority could hurt users at the low end of the economic ladder—bloggers, students, libraries, schools, advocacy groups. "Even open Internet skeptics acknowledge that pay for priority may disadvantage non-commercial uses of the network, which are typically less able to pay for priority, and for which the Internet is a uniquely important platform."

Finally, ISPs that push pay for priority service "would have an incentive to limit the quality of service provided to non-prioritized traffic." As some game developers worry, ISPs might effectively charge for non-inferior service, investing "less in open access and more in services that they can provide at a premium."

"In light of each of these concerns, as a general matter, it is unlikely that pay for priority would satisfy the 'no unreasonable discrimination' standard," this section of the FCC's Order concludes. "The practice of a broadband Internet access service provider prioritizing its own content, applications, or services, or those of its affiliates, would raise the same significant concerns and would be subject to the same standards and considerations in evaluating reasonableness as third-party pay-for-priority arrangements."

History

All of these assertions will soon be contested. AT&T has all but told the FCC that it could live with net neutrality rules... provided those rules give a green light to priority access arrangements.

As AT&T warned the FCC a year ago, a "strict" nondiscrimination provision "would completely ban voluntary commercial agreements for the paid provision of certain value-added broadband services, which would needlessly deprive market participants, including content providers, from willingly obtaining services that could improve consumers' Internet experiences."

On top of that, AT&T has its own take on the history of this matter. The ISP insists that paid priority access was "fully" and even "expressly" contemplated by the Internet Engineering Task Force decades ago as it mapped out the 'Net's key protocol, TCP/IP.

But the Center for Democracy and Technology pushes back that AT&T is misreading early IETF documents, which were purposed to "describing the technical architecture needed to deploy differential services—not the payment schemes that may be associated with it."

Hello, Level 3

Then there's the sticky question of whether the dispute between Level 3 Communications and Comcast falls into this zone of scrutiny. The Internet backbone and Content Delivery Network operator insists that Comcast crossed the line by charging it to move Netflix movie data to Comcast network subscribers. Comcast pushes back that this is just a private peering/transit dispute, in which Level 3's sudden jump in traffic required a economic response.

When asked if the FCC would scrutinize the Level 3 dispute, Chairman Julius Genachowski responded that the agency was "looking into it." It seems likely that if controversies like this keep coming up, complaints invoking the FCC's new Order will be filed, requiring the Commission to look into the matter quite a bit over the coming months.

Or maybe not. Comcast seems quite sanguine about Tuesday's decision.

"While we look forward to reviewing the final order, the rules as described generally appear intended to strike a workable balance between the needs of the marketplace for certainty and everyone's desire that Internet openness be preserved," Comcast Vice President David Cohen declared. "Most importantly, this approach removes the cloud of Title II regulation that would unquestionably have harmed innovation and investment in the Internet and broadband infrastructure."

Reasonable and timely

Rather than Title II common carrier regulations, much of the Order's legal framework is based on Section 706 of the Communications Act, which requires the FCC to "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans."

The question of whether this and various other sections of the Act that the FCC is invoking will survive court scrutiny is an interesting one, but there are other potential legal bugbears ahead. The ISPs also insist that they've got the First Amendment right to cut priority access deals with content providers.

"The First Amendment protects the right not just to decide what to say, but how to say it," National Cable and Telecommunications Association CEO Kyle McSlarrow declared last year. "Does the First Amendment really allow the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes?"

How will all this play itself out? It depends on how the FCC enforces this advisory, and who sues the government in response.

"We have a legal basis for the rules we adopted today that is very strong—that gives us the authority we need," Genachowski told reporters in a press conference held after Tuesday's Open Commission meeting. "And I am confident it will in court."

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar

95 Reader Comments

I think the problem a lot of people have with this (I could be wrong) is that instead of leaving things like paid priority open to interpretation, the rules should have been concrete. All this talk of "Oh don't worry, it's unlikely to satisfy our definition of reasonableness" just smacks of holding crossed fingers behind their backs.

I also worry that the interpretation of the rules could change under future FCC chairmen. It's much better to have the rules be solid to begin with. At least the Obama FCC will (hopefully) set quality precedents for enforcement that could affect future legal rulings.

Bah... the only argument should be "we are delivering the content that YOUR SUBSCRIBER asked for. To that end, the movie we are supplying is no different from 100 ad-supported pages on Yahoo News. In the end, the same number of bits are delivered to your subscriber - that they initiated the request for. Period"

How is this complicated? They are not a "transit" service, but a "delivery" service. If it hurts too much -- charge the users more (to deliver WHAT THEY REQUESTED)... and let the free market solve the issue.

This is a common misconception, so let me fix this before it bogs down the thread (and hopefully stops it from being raised in other topics if people bother to read this):

You have NO 1st Amendment rights vis a vis a private entity. A corporation, company, or small mom and pop store cannot, by definition, infringe on your 1st Amendment rights. I don't mean the "cannot" in the sense of "they aren't allowed to", I mean in the sense of, legally, it's impossible for them to do.

As an analogy for legal definitions: you can't have a murder without a dead person. If you pointed a gun at someone, knew it was likely to kill if you pulled the trigger, you meant to kill the s.o.b. with every fiber of your being, and then you pulled the trigger, but somehow the bastard survives, they cannot try you for murder, because, again, no dead guy.

The 1st Amendment restricts the right of the GOVERNMENT to suppress speech (among other things). Private entities are, de facto and de jure, not the government. Therefore, you cannot claim 1st Amendment protections against the actions of a company.

Easy, real-world example of this: dress codes at bars/clubs/restaurants. The owner can say, no one wearing jeans or sandals comes in. Inhibiting your ability to express yourself? Sure. Possibly suppressing some political statement that you could somehow be making? Yup. Restricting your freedom to assemble (also in the 1st)? Absolutely. Protection given from the 1st Amendment? None

Okay, I'm a supporter of net neutrality for the most part, but let's get this straight- your first amendment rights CANNOT be infringed upon by a company. The first amendment prohibits the government from instituting laws that interfere with free speech. A company is not the government, and therefore cannot have any affect on your First Amendment rights

Should the wording be changed to be that the government shall abide no inhibition of free speech by the government or a third party? Maybe, but then we'd get all sorts of crazy complaints from people looking to have their work published by a company and saying that company is "inhibiting their free speech" by not printing their work, or something similarly crazy. If you need any proof of what crazy crap people will try to pass under the guise of "free speech", just look at the Westboro Baptist Church.

This is a common misconception, so let me fix this before it bogs down the thread (and hopefully stops it from being raised in other topics if people bother to read this):

You have NO 1st Amendment rights vis a vis a private entity. A corporation, company, or small mom and pop store cannot, by definition, infringe on your 1st Amendment rights. I don't mean the "cannot" in the sense of "they aren't allowed to", I mean in the sense of, legally, it's impossible for them to do.

As an analogy for legal definitions: you can't have a murder without a dead person. If you pointed a gun at someone, knew it was likely to kill if you pulled the trigger, you meant to kill the s.o.b. with every fiber of your being, and then you pulled the trigger, but somehow the bastard survives, they cannot try you for murder, because, again, no dead guy.

The 1st Amendment restricts the right of the GOVERNMENT to suppress speech (among other things). Private entities are, de facto and de jure, not the government. Therefore, you cannot claim 1st Amendment protections against the actions of a company.

Easy, real-world example of this: dress codes at bars/clubs/restaurants. The owner can say, no one wearing jeans or sandals comes in. Inhibiting your ability to express yourself? Sure. Possibly suppressing some political statement that you could somehow be making? Yup. Restricting your freedom to assemble (also in the 1st)? Absolutely. Protection given from the 1st Amendment? None

A Corporation is not a person though, the .corporation. was saying that the First Amendment was protecting them from being regulated.

Quote:

The ISPs also insist that they've got the First Amendment right to cut priority access deals with content providers.

The first amendment is intended to protect the american people -not corporations or entities.

Bah... the only argument should be "we are delivering the content that YOUR SUBSCRIBER asked for. To that end, the movie we are supplying is no different from 100 ad-supported pages on Yahoo News. In the end, the same number of bits are delivered to your subscriber - that they initiated the request for. Period"

How is this complicated? They are not a "transit" service, but a "delivery" service. If it hurts too much -- charge the users more (to deliver WHAT THEY REQUESTED)... and let the free market solve the issue.

Another fanatic drinking the free market koolaid. In regards to Internet communications history has shown, time and time again that consolidation and business interests always trumps uncensored and timely access to information. If its profitable to slow or halt information they will do it. If someone or a group in power with capital want access to information restricted to the public the free market isnt going to save you when all of the telecommunications play by the same rules. The wiki-leaks censorship is a prime example of this. Call it what you want, but when one country can dictate what the rules are in terms of free speech and silence political speech there is no such thing as equal access to information.

I don't care how much the FCC wishes to stay relevant and wants to stretch the 1934 communications act, I don't want unelected presidential appointees sneaking in new law for the internet, it should be discussed and voted on in daylight by the elected congress, regardless of the merits or lack thereof of Net Neutrality. The government has been chewing at the bit to control and censure the internet with relentless legislative attempts that have been thwarted and now they do it undemocratically with backroom deals. You wait until the FCC gets control of internet content. Personally I didn't know there was a problem, my internet is fine.This is the first day of government control of the previously free internet.

>>If they, the corporate entity, have first amendment rights that presumably can't be interfered with by other corporate out governmental entities, then I--as an individual entity--have equal rights.<<

If this ever makes it to the SCOTUS, can I guess the score?ISP's = 5Internet users = 4

"On top of that, AT&T has its own take on the history of this matter. The ISP insists that paid priority access was "fully" and even "expressly" contemplated by the Internet Engineering Task Force decades ago as it mapped out the 'Net's key protocol, TCP/IP."

What does this have to do with the price of tea in China? Just because AT&T thinks "paid priority" was assured to them "decades ago" does not mean that it was legal or ethical -- then OR now. Political parties change the rules every time they change control.

Yeah, this sounds a lot like "Peacekeeper" missiles, and other government euphamisms. They say they hear the masses and won't bow to their coperate overlords. Then the businesses and the paid for polititions will come over and tell them to play ball, and they will cave and tell America, "Sorry, we tried, but you know how it is."

A Corporation is not a person though, the .corporation. was saying that the First Amendment was protecting them from being regulated.

[snip]

The first amendment is intended to protect the american people -not corporations or entities.

Legally, corporations are citizens of the state they are incorporated in. Don't like it? Take it up with Congress.

From Wiki: (ya I know, but it's easy)

"In part based on the principle that legal persons are simply organizations of human individuals, and in part based on the history of statutory interpretation of the word "person", the U.S. Supreme Court has repeatedly held that certain constitutional rights protect legal persons (like corporations and other organizations). Santa Clara County v. Southern Pacific Railroad is sometimes cited for this finding, because the court reporter's comments included a statement the Chief Justice made before oral arguments began, telling the attorneys during pre-trial that "the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." Later opinions misinterpreted these pre-argument comments as part of the legal decision.[7] As a result, because of the First Amendment, Congress can't make a law restricting the free speech of a corporation, a political action group or dictating the coverage of a local newspaper.[8] Because of the Due Process Clause, a state government can't take the property of a corporation without using due process of law and providing just compensation. These protections apply to all legal entities, not just corporations." https://secure.wikimedia.org/wikipedia/ ... al_persons

Comcast should butt out of it's customers use of its service. Period. So should the FCC. If poor ol' Comcast thinks ITS CUSTOMERS are using too much of its bandwidth (WTF?), the company should take up the issue with its customers, NOT with the company providing the customers with the data they want. And certainly not with a regulatory government agency.

Comcast has NO business shutting out data. It is a PROVIDER, for Gods sake. That is what its customers pay for. They do NOT pay for it to be some kind of corporate profit filter that denies paying customers their data. The only reason the company is pushing the issue before the government is because it is afraid to charge its customers extra for the data they demand. Like every other monopolistic enterprise, Comcast fears a likely revolt in the face of its well-known history of gouging its customers. After all, a revolt like THAT might result in REAL regulatory action as opposed to the regulatory "servicing" as described in this article.

I understand that Akamai installed its equipment at Comcast's headend which relieved Comcast's servers of the job they are supposed to do and that when Netflix dumped Akamai (bad move, Netflix), Comcast's servers buckled under the load. But the fact remains that Comcast's own equipment couldn't keep up with ITS CUSTOMERS' DEMAND and now Comcast wants someone else to pay for its OWN GIANT INFRASTRUCTURE FAILURE. AND OMFG, the Genachowski FCC buys right into this line of total bullshit.

Uh, WRONG! A typically oversimplified interpretation of the Constitution. Do more research.

Was that a joke to just say "wrong, do more research" but not provide any basis for your rejection of the claim. Here's the First Amendment:

Quote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It's pretty clear - it's all about what Congress/Government is not allowed to do to the people (and since SCOTUS has declared that corporations are people, them too). There's nothing there about person-to-person or company-to-person interactions.

I blame people like Sarah Palin and the networks that run her nonsense for going on and on about how Dr Laura's 1st Amendment rights were being trampeled when she got canned. Same with the others who were recently fired from the companies they worked at for staying stupid things. Not to get too political but these things are easy to correct but somehow not many "news" organizations bothered to do so.

Uh, WRONG! A typically oversimplified interpretation of the Constitution. Do more research.

Was that a joke to just say "wrong, do more research" but not provide any basis for your rejection of the claim.

Sigh, Peabody, for the purposes of this discussion...there is no more research to do. I have done the research and am well aware of the doctrines under which a private actor can be held as a government actor for the purposes of the application of protections of the Bill of Rights to prohibiting private conduct. They aren't applicable here. I intentionally gave a "oversimplified" explanation because the complexities of the state action doctrine would just serve to confuses the discussion and ultimately be useless in this context.

If you do somehow think any of the three possible exemptions to the state action doctrine DO apply, then feel free to share your reasoning, and I will happily show you why you are wrong. I don't need to make your argument for you just for the purposes of shooting it down. Way to point out how what I said was wrong though...definitely holding to Ars's typical standards or worthiness (this is me calling you a typically oversimplified troll).

Bah... the only argument should be "we are delivering the content that YOUR SUBSCRIBER asked for. To that end, the movie we are supplying is no different from 100 ad-supported pages on Yahoo News. In the end, the same number of bits are delivered to your subscriber - that they initiated the request for. Period"

How is this complicated? They are not a "transit" service, but a "delivery" service. If it hurts too much -- charge the users more (to deliver WHAT THEY REQUESTED)... and let the free market solve the issue.

We did let the free market decicde. We gave them 5 years tro sort this out on their own. They promised not to stifle innovation and competition on the internet, and then in turn came up with a price model that if implemented will essentially chose the winners and losers on the net. They're not saying video streams cost more, they're saying video from NetFlix costs more, but video from our partners doesn't. That is a blatant anticompetitive practice.

See, the free market only can win when the consumer has choices. 70% of the residents in the US do NOT have a choice of multiple providers within reasonable costs, worse, most of those providers even where competitive are all pushing for such a deal. Free market works on profit, and if they all see a greener road, they ALL take it, and the consumer and the business (separated by this middle man they don;t have a choice in), gets to make the decisions for both the customer and business both.

And they are a transit service. I can upload just as easily as download. The content I access if not from them, but others. They don't own the network, they're a PART of it, and they have no power to make the decision of what i access other than the fact i have no choice but to connect THROUGH them to get to that content.

The weird thing is the exemption for wireless access. Cell phones are just a new type of peer on the Internet. It goes to show that if the internet was invented by corporations instead of academics, and if it was invented today rather than decades ago, it would all be prioritized for maximal bit-by-bit efficiency with little concern for the freedom of the user.

Uh, WRONG! A typically oversimplified interpretation of the Constitution. Do more research.

Was that a joke to just say "wrong, do more research" but not provide any basis for your rejection of the claim. Here's the First Amendment:

Quote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It's pretty clear - it's all about what Congress/Government is not allowed to do to the people (and since SCOTUS has declared that corporations are people, them too). There's nothing there about person-to-person or company-to-person interactions.

I blame people like Sarah Palin and the networks that run her nonsense for going on and on about how Dr Laura's 1st Amendment rights were being trampeled when she got canned. Same with the others who were recently fired from the companies they worked at for staying stupid things. Not to get too political but these things are easy to correct but somehow not many "news" organizations bothered to do so.

Wrong. If your ISP itself was the speaker (aka, the content provider), then you would be right. Unfortunately, they're not the newspaper, they're the newspaper stand, or the grocer. They have a right to their own speech, but they do NOT have a right to interfere in the speech of OTHERS. What they're asking to essentially do is sell newspapers from multiple publishers, but choose which they like and don't like based on how they profit from the sales, then make it more difficult for you to buy one paper vs another, and perhaps even remove some pages of that paper before selling it to you.

But its worse. You already subscribe to the newspaper, and pay for delivery. They're coming along to the end of your driveway, picking that paper up, and then charging you an extra fee to get it, while instead offing to drop their paper their partner prints in its place for free.

A company is an entity when that company wished to speak of it's OWN voice, and they can act as the proxy for another's voice with consent. However, they do NOT have the right to tell you which voices, freely spoken unto themselves and protected by the government to do so, you're allowed to hear. A cable company can pick and choose channels to provide, but not the content on it, and they do so by contracting TO carry a channel. ISPs do not choose to carry or not carry an IP address, they do not own all the points in the network, and thus have no say.

The weird thing is the exemption for wireless access. Cell phones are just a new type of peer on the Internet. It goes to show that if the internet was invented by corporations instead of academics, and if it was invented today rather than decades ago, it would all be prioritized for maximal bit-by-bit efficiency with little concern for the freedom of the user.

They ARE prevented from discrimination based on source, destination, content, etc. They are simply given less strict network management rules due to the uniqueness of the platform. ISPs on wire-line can easily upgrade for capacity, and emergency access services, business connections, and other systems are already inherently separate. Upgrades effect enpoints upgraded only, without impacting the remainder of the network. Each port on a switch can support a different service or connection type.

Over the Air however, upgrades have to be universal, and done in new airspace which is expensive, difficult to come by, and takes a decade to deploy and switch to. They do not have the power to simply upgrade capacity by changing protocols (like the DOCIS3 switch nobody noticed happening). Further, cellular signals support not just data, but also critical phone use, including emergency calls, business communication , and more. those systems are not separate, and have to have guaranteed levels of service. Protecting call quality on a call network is critical, and that means certain types of data feeds may need to be specifically targeted during heavy access periods in local areas (for wireless, this can only be limited between tower and radio, they're still a wire-line network behind that point and can't outright filter video overall, just for network management and call quality guarantees). This also means alert notifications, GPS tracking data, and other real-time feedback systems have to take priority. now, that said, a connection is also an active connection, using airspace whether or not its transmitting packets at a heavy or slow rate. This means burst communications of some type of data may be used as well, to maximize the number of packets being transmitted while also maintaining near-time communication of other data. The methods wireless towers use to communicate with radios is VERY different from how a port on a switch works. The token handling methods are very different, and that has a direct impact on how traffic can or must be shaped to guarantee maximum available (or efficiently utilized) air space. They can't just add more ports and fiber like wire-line can, that takes acts of congress and multi-billion dollar sales. They have to have slightly different rules.

As far as blocking content outright, no one is permitted to do that. As far as pay-for-premium site based ideas, those are also outright banned. They CAN have some leniency to identify types of traffic based on their criticality, and protection of voice traffic above all else, and real-time data beyond that, but they will still be forbidden from say, allowing netflix but not hulu, or promoting their own broadcast chanels over those of competitors, they might simply be able to (when necessary based on "last mile" loads at towers, reduce video feed protocol priority generically across all active connections. That might cause jitter, and buffering, but calls should remain more stable, GPS map data will get to you before you drive down that road, alerts critical to launching real-time app notifications will arrive (SIP packets and other VoIP centric incoming call notices, etc), things you have to get instantly can get there instantly. Video is entertainment, and low priority, it can be downgraded for the sake of more critical or timely data in networks that can not be simply upgraded. Wire-line does not get this considderation, they'll be expected to add capacity to maintain SLA, where wireless can't simply add capacity that way.

The ISP monopolies should be broken up. Competition is the real answer to net neutrality. If you don't like what your ISP is doing, switch.

There should be 5 broadband options everywhere, not just 2 or worse just one. Line sharing should be applied to wireline networks.

We're headed that way, but we don;t even have 1 line everywhere yet, let alone the switching infrastructure to support 2rd party wholesale access. We're 20 years from having that network, but the ISPs are pushing anti-competitive pricing NOW, and trying to rewrite peering rules, which will result in promotion of some content over others, and incombant services having distings business advantages over others.

If we ad the $3T worth of systems already in place, yea, you;re right. We don't, thanks to the first Bush era.

"Does the First Amendment really allow the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes?"

Sure, you can pick the delivery company for getting your newspaper from the presses to the readers. But you don't decide what route the trucks take or the speed they drive. And yes, this analogy falls apart because your Internet-based app doesn't decide which ISP to ship your content across, it just puts it on the wire and the protocols take over.

Applying a Free Speech argument to paying for priority access is completely silly.

"A Corporation is not a person though, the .corporation. was saying that the First Amendment was protecting them from being regulated."

"The first amendment is intended to protect the american people -not corporations or entities."

Unfortunately, the SCOTUS has decided that corporations have the same rights as people. A gross injustice, but until this is corrected, there is little hope for human beings to have rights again.

A corporation does have the right to it;s OWN voice, and for it's opinions and views to be heard without government interference. What we have here is different. It's a company trying to say they have a right to control what you HEAR based on what OTHER companies spoke. That's the equivalent of a cable company having the right to carry a channel, but choose not to carry a particular show on it because that show has fewer commercial breaks and costs them more to air, so they substitute their own show instead, and offer to charge you more to put the original back. They do NOT have the right to control the speech of other companies, nor my right to have access to that speech without interference, prejudice, or discrimination.

"On top of that, AT&T has its own take on the history of this matter. The ISP insists that paid priority access was "fully" and even "expressly" contemplated by the Internet Engineering Task Force decades ago as it mapped out the 'Net's key protocol, TCP/IP."

What does this have to do with the price of tea in China? Just because AT&T thinks "paid priority" was assured to them "decades ago" does not mean that it was legal or ethical -- then OR now. Political parties change the rules every time they change control.

Deal with it, AT&T!

You don't understand AT&T's argument (and the competition is trying to make this difficult because if you don't understand, it keeps uVerse from competing with their business). They are NOT suggesting that their video feed over IP have priority or special treatment over other video feeds on the same connection, or the right to promote one or the other. They're not talking about on-demand or streaming services. They're talking about multi-cast subscription systems. They insist IPTV is a separate service entirely, and they're right.

Right now, cable, satellite, etc provide their feed over dedicated channels. Some also provide ISP services, even on the same physical cable, but through a separate physical system. If the internet is heavily bottle-necked, your cable TV is not effected. However, IPTV, which is a broadcast NOT a download (1000 users needs the same bandwidth as 1, not 1000 times the bandwidth), has no such protection. You pay AT&T a subscription like any other to get their broadcast channels, but without prioritization, AT&T being able to offer a Comcast internet subscriber a TV feed would be essentially impossible, since as soon as Comcast started throttling a user's connection, TV would in fact suffer as well. By not being able to prioritize, IPTV can never be a viabl system outside of it;s own network. Worse, if AT&T even tried to ensure available bandwidth for IPTV within their own network, when the local note is bottle-necked, they would equally be unable to secure that without prioritization.

What AT&T asked to do was simply QOS IPTV subscription no differently that cable companies and phone companies already can. You can get landline telephone and DSL on the same wire, why can;t we guarantee VoIP and Internet on the same wire, such that VoIP is QoSed to guarantee cal quality even under the worst traffic scenarios? They're not asking to make IPTV a higher priority than netFlix, they're insisting IPTV is not ON the internet, its simply sharing the same cable. Theyr'e referring to "managed services" which require in-home devices specifically to receive and decode the signal provided. VoIP, IPTV, and leased VPN connections, services people subscribe to directly, that are not access separately over a 3rd party's system.

This makes sense. Your IPTV bandwidth is bandwidth you paid for not to have 10mbit down, but to have 4 concurrent HD channels delivered. You have not paid for an "up to" connection with IPTV as you do with the internet, you have paid for a SPECIFIC conenction, as you do with a T1 line. They want the ability to guarantee you that additional spectrum while still having a right to throttle your generic IP connection for overall network management to relieve bottlenecks.

today you pay a phone bill, an internet bill, and a TV bill. those services may be independent, or from the same provider. They simply want to keep the SLAs for each service separate even if the provider is unified and bill is unified, even if the transfer medium is unified (IP vs QAM). They also need this to be able to ever wholesale uVerse to places where they don't already have a network (to compete with satellite, and draw contracts for channels they can't currently get due to lack of ability to deliver to local subscribers and market related licensing deals).

They're NOT asking to limit netflix while promoting their own TV service, they're asking to be able to compete with Cable TV directly. Netflix is a streaming feed, IPTV is a broadcast, they're inherently different. (not to mention, throttling a streaming protocol is a PITA compared to an IP specific feed, there are actually technical barriers to doing that). Now, as far as uVerse offering some sort of on-demand PPV, that's a bit different. it might be treated as one of your 4 channels normally through the decoder, but if it was accessed on your PC through an app, or on your mobile over WiFi in your house, it might have to be classified as general IP traffic, and AT&T was agreeable to that.

If it goes through a box you pay for, 1st party or wholesale, that content is specific content, and they should be able to QoS off an appropriate portion of your pipe and guarantee you tat bandwidth, all other things aside. That's all they asked for.

"A Corporation is not a person though, the .corporation. was saying that the First Amendment was protecting them from being regulated."

"The first amendment is intended to protect the american people -not corporations or entities."

Unfortunately, the SCOTUS has decided that corporations have the same rights as people. A gross injustice, but until this is corrected, there is little hope for human beings to have rights again.

A corporation does have the right to it;s OWN voice, and for it's opinions and views to be heard without government interference. What we have here is different. It's a company trying to say they have a right to control what you HEAR based on what OTHER companies spoke. That's the equivalent of a cable company having the right to carry a channel, but choose not to carry a particular show on it because that show has fewer commercial breaks and costs them more to air, so they substitute their own show instead, and offer to charge you more to put the original back. They do NOT have the right to control the speech of other companies, nor my right to have access to that speech without interference, prejudice, or discrimination.

What are you talking about? Cable companies can (and do) decide what you can watch based on how much it makes them. A show doesn't have a "right" to be broadcast. It has a business deal.

You're confusing free speach with access to information. Look, it's a lot easier to argue this as anti-competitive business practices than it is to try to make a free speach argument. Network neutrality IS important, but comparing an ISP to a cable company is exactly the wrong kind of comparison. If they want to bump a channel into a tier that cost subscribers more, that is their right. It has happened before. No company can FORCE a cable company to carry their signal. Just like I can't force Ars to publish any articles I write. Creating content doesn't entitle you to have somebody else bring that content to subscribers.

Net neutrality IS important to free speach, but the arguments for it are much easier to demonstrate from the point of view of anti-competitive business practices. If Comcast (or others) use their status as ISPs in order to filter or slow down traffic from Netflix, arguing it as a free speach issue gets messy- but it IS a cut-and-dried case of anticompetitive behavior. Given the fact that most consumers don't have multiple high-quality broadband options, it can be regulated under FTC laws (and in fact, it should be).

I just don't get what you're trying to say as far as the 1st Ammendment- not having access to all content is not the same thing as the government suppressing your right to free speach.

The FCC is just posturing to try to show that the care about consumers when in fact they are totally in bed with the carriers. The carriers slip enough dirty money under the table to Congress and the agencies and the agencies and congress do as they are told.

The first amendment is intended to protect the american people -not corporations or entities.

Ah, but you have the legal concept of the corporate person. Which is the most asinine ruling by the SCOTUS ever. Corporations have vastly more resources than the average person, allowing them to drown out the voices of individuals.

The 1st Amendment restricts the right of the GOVERNMENT to suppress speech (among other things). Private entities are, de facto and de jure, not the government. Therefore, you cannot claim 1st Amendment protections against the actions of a company.

You are correct, but you're only spelling out half the equation.

If you and I sign a contract that effectively restricts my freedom of speech in such a way that I agree to pay you to exercise it, and I default on this contract by exercising my freedom without writing you a check, can you then take me to court and have the government compel me to pay you?

No. Because in doing so, the government would then be violating my 1st Amendment rights, making this contract essentially unenforceable. This is a critical part of the "only protects you from the government" piece that people tend to miss.

What does this have to do with the article? Probably nothing, to get it back on track:

I think, looking back 100 years from now, historians will talk about the granting of "human rights" such as freedom of speech to corporations as one of the big factors in the fall of western civilization -- that is of course assuming the survivors don't just chalk it up to some supreme being destroying a corrupt,evil society, which now that I think about it, is probably pretty likely.

Oh, and I would also submit, that the anger of those yelling and screaming about it here, and on other tech news sites, would probably be better directed towards writing your congress-critter and expressing your displeasure with the gaps in the FCC's proposal.

No one with a horse in this race is going to care about the rantings of some anonymous weenie on the internets. Make it a real issue from a real person by calling, writing a letter, or standing on the steps of congress holding a sign. Then you'll have done something.

Forgive me if I get this wrong, but in the arguement that cable companies have first amendment rights to offer services however it likes, wouldn't the FCC tell them (that is if corps really do have such a right) that they cannot use their "free speech" to curtail/deny/delay a much larger populations right to free speech?

The 1st Amendment restricts the right of the GOVERNMENT to suppress speech (among other things). Private entities are, de facto and de jure, not the government. Therefore, you cannot claim 1st Amendment protections against the actions of a company.

You are correct, but you're only spelling out half the equation.

If you and I sign a contract that effectively restricts my freedom of speech in such a way that I agree to pay you to exercise it, and I default on this contract by exercising my freedom without writing you a check, can you then take me to court and have the government compel me to pay you?

No. Because in doing so, the government would then be violating my 1st Amendment rights, making this contract essentially unenforceable. This is a critical part of the "only protects you from the government" piece that people tend to miss.

I'm sorry, but this is just wrong. Just because you take a private entity to court (or vice versa) over an agreement that if a governmental entity had been one of the parties would restrict a right found in the BoR does not invoke state action. Similarly, it does not create state action for a court to enforce a private contract. It's been tried, it fails. You are just wrong as a matter of law. I could go find a case in my ConLaw notes, but I don't have time and need to head to work.

Your example is completely inapposite. You can't "contract away" your 1st Amendment rights with a private entity. You do not HAVE any 1st Amendment rights against a private person or entity. If a moderator online (not a governmental employee) deletes your post, there is no 1st Amendment violation, you don't have a right for a company to not restrict your speech. If you get fired from your work for hosting a political protest, there is no cause of action for infringement of your 1st Amendment rights. Ignoring anti-discrimination laws for a minute, a company could have an official religion and/or specifically restrict its employees from practicing a certain religion. That would not be a 1st Amendment violation.

I don't know how to make this clearer. Except for some very legally-particular situations (none of which apply to this discussion), a person, a business, or a private entity CAN NOT INFRINGE ON YOUR CONSTITUTIONAL RIGHTS. Again, this "can not" is not "is illegal to do so" or "are prohibiting from doing so." This "can not" is like saying a human being "can not" ignore the Law of Gravity. It's not a choice, it's not an action that can be restricted. In the case of gravity, it's a physical impossibility. With our 1st Amendment issue, it's a legal impossibility.

Mobile broadband presents special considerations that suggest differences in how and when open Internet protections should apply.

All the more reason NOT to allow any kind of tiered or prioritised scheme in that arena.

Quote:

Mobile broadband is an earlier-stage platform than fixed broadband, and it is rapidly evolving.

Not if it becomes seen by users as a restricted - .a.k.a. broken - way to reach content.

The Internet up to this point has experienced phenomenonal growth due to its openness. Just look at AOL for an example of how restricted access worked out. Telecoms, however, appear to be run for the most part by morons who can count but not read. If mobile Internet access turns into some version of AOL, with the provider carefully throttling access to some channels and not other in an attempt to steer consumers/users in one direction or another, mobile Internet access will simply die like AOL died - a slow decline into a kind of undead state, still technically in existence and in arguably in a kind of functional state but dead for all intents and purposes.

Forgive me if I get this wrong, but in the arguement that cable companies have first amendment rights to offer services however it likes, wouldn't the FCC tell them (that is if corps really do have such a right) that they cannot use their "free speech" to curtail/deny/delay a much larger populations right to free speech?

No.

The First Ammendment protects you (and the corporations) from any government interference which inhibits free speach. A corporation cannot, by definition, inhibit your First Ammendment rights.

Also, you not being able to get Netflix isn't a matter of free speech. It's just freaking annoying for you. But you don't have a right to be able to get to everywhere on the internet. That's not what free speech is.

If Comcast blocks Netflix, it is a matter between Netflix and the Comcast, and would likely be brought up on anti-trust laws, not freedom of speech laws. You could cite violation of contract between Comcast and you, but that's about it. Again free speech is you putting your voice out there-- it doesn't protect you being able to GET information/content/etc.